5 Colo. Code Regs. § 1002-38.15
On May 9, 1983, the Commission reviewed the temporary modification of numeric standards for Ralston Creek, segment 17 of Clear Creek, section 3.8.6 of the "Classifications and Numeric Standards, South Platte River Basin, etc.," effective May 16, 1981, and contained in Article 3 of the Commission's rules. The following paragraphs applicable to this segment constitute the statement of basis and purpose for the Commission's rule adopted May 9, 1983.
The Commission was favorably impressed by the diligence of the Cotter Corporation in attempting to meet the underlying standards, which was testified to during the hearing. This favorable impression was enhanced by evidence of Cotter's plans and the manner in which the firm has moved forward on controlling the levels of pollutants in its effluent, particularly meeting the underlying standards for lead and uranium. For these reasons the Commission felt justified in extending the temporary modification of the numeric standards for copper and cadmium while operational modes are being tested.
In determining the duration of the extension of the temporary modifications, the Commission observed the schedules involving application of innovative technology and optimizing its functioning are often not met. To lessen the probability of an additional hearing, the Commission has set the expiration date of the temporary modification for one year from the expiration of the existing modification, which would be July 16, 1984.
The Commission provided that the extension of the temporary modifications for the metals parameters covered by the hearing expire on a date certain without provision for an automatic and possibly unnecessary rehearing to consider termination, revision, or extension of the modification. If some parameter cannot be met, the Commission may be petitioned to hold a hearing to consider adoption of a temporary modification or to take other action.
In considering the impact of its action on water quality, the Commission determined that as soon as the wastewater treatment facility constructed by the Cotter Corporation is fully tested, the effluent from their plant will be receiving treatment, which will be directed toward meeting underlying standards. Operational adjustments are being performed and that data is being collected to demonstrate attainment of planned levels of performance. Thus, the objectives of the Commission will have been attained with the temporary modification period available for operational performance testing, evaluation, and documentation. The Commission established the length of the temporary modification recognizing that there is a need to acquire 30-day averages of data to indicate the degree of success of such technology.
Adopted: May 9, 1983
STATEMENT OF FISCAL IMPACT FOR "REGULATIONS FOR EXTENDING TEMPORARY MODIFICATIONS FOR RALSTON CREEK"
The Fiscal Impact of extending temporary modifications for Copper (Cu) and for Cadmium (Cd) is a positive benefit to the Cotter Corporation. Testimony revealed that Cotter Corporation has committed to investing approximately $2,240,000.00 in capital expenditures to meet the adopted Uranium Standards for Segment 17 of Clear Creek with an annual operations and maintenance requirement of $500,000.00. Cotter has also constructed an emergency storage pond at a cost of $250,000 to further the effectiveness of their treatment program. From the innovatave technology of the installation, Cotter Corporation had expected to recover approximately $100,000.00 worth of Uranium each year. Cotter indicated through testimony that they have not yet been able to measure a recoverable amount of uranium through ion exchange solution recovery processes. Thus, they appear to have been unable at this time to recover any of the O & M costs through after treatment recovery.
Additionally demonstration of the feasibility of the metals removal technology to be applied would enable more rapid solution of similar situations in the future. Cotter testified that they hoped to gain technological insight from the ion exchange process that could be applied to the copper and cadmium problem. However, due to the relatively untested nature of this unique application of technology and the levels of copper and cadmium to be reached to meet water quality based limitations, Cotter Corporation indicated that a certain degree of time past the expiration of the original temporary modifications would be necessary to explore all available techniques to treat for the two metals of concern. Without such an extension, the mine would be forced to cease discharging to avoid enforcement proceedings. The impact would be to cause the mine to flood which would effectively terminate the operation of the mine. If in fact this became the case, the fiscal impact would be a potential dissolution of the Corporation's mine operations with a subsequent termination of the milling operations in Canon City. This would result in the potential permanent severance of approximately 350 employees located at the mine and the mill. Loss of profit and net losses in capital investments were not testified to but can be assumed to be of a quite substantial magnitude.
As no party gave substantive testimony indicating an economic impact or harm that could be expected from an extension, the Commission acted in an economically reasonable and responsible way by extending the modification. Thus, the fiscal impact is the preservation of Cotter's Schwartzwalder Mine and Canon City Mill Operations with the attendant savings of whatever profits those operations generate. This extends to the preservation of approximately 350 jobs and the timely and economic retirement of capital equipment.
The Commission finds from the testimony presented to it that if the temporary modifications are not granted for segment 17 of Clear Creek that the mine operated by Cotter Corporation adjacent to that creek might be shut down; that the Corporation's mill in Canon City would be threatened with closure; and that the employment of some 350 people could be terminated. In light of the public health benefits of its actions, the Commission found them to be economically reasonable. In further consideration of the economic reasonableness of its action the Commission noted that the Cotter Corporation had testified that it had committed 2.24 million dollars to its treatment facility which was said to be more than five times the original estimate and that the Cotter Corporation should be given the time to prove the technology it intends to apply.
Adopted: May 9, 1983
The Company has also incurred an expense of an additional $250,000 for emergency storage ponds. Estimated annual operating costs are upwards of $500,000. There is some concern for impact on other parties, but no evidence substantiates such concerns at this time. In fact, none of the parties objected to the granting of these temporary modifications.
The compliance schedule contained in the permit issued to the Cotter Corporation by the Water Quality Control Division is based on the current temporary modification which expires July 16, 1983. The Division can only enforce the compliance schedule in accordance with the terms of the temporary modification being extended by this action.
5 CCR 1002-38.15